Case Number: BC626141 Hearing Date: June 05, 2018 Dept: 2

Motion for Summary Judgment by Defendant, Haiping Wang, M.D., filed on 9/15/17, is GRANTED. Defendant has established that he is entitled to judgment in his favor based on the undisputed material facts proffered. Cal. Code Civ. Proc. § 437c(p)(2).

In a medical malpractice action, proof of the standard of care requires expert testimony. Landeros v. Flood (1976) 17 Cal.3d 399, 410. Causation must be proven within a reasonable medical probability based upon competent expert testimony. Jones v. Ortho Pharm. Corp. (1985) 163 Cal. App. 3d 396, 402.

The parties do not dispute the following material facts: The complaint alleges that Plaintiff presented to the emergency department of Alhambra Hospital Medical Center on 7/14/15, with heavy vaginal bleeding. UF 2. Defendant, Haiping Wang, M.D., was asked to consult. Dr. Wang suggested that patient undergo a D&C procedure. UF 3.

Dr. Wang performed the procedure on 7/15/15. Tissue samples were sent to pathology for testing. UF 4. The pathology report was dictated on 7/17/15 by Defendant, Edward Lai, M.D. UF 5.

Plaintiff disputes the content of her conversation with Dr. Wang on 7/18/15. She stated that Dr. Wang told her she had uterine cancer and needed surgery urgently, while Dr. Wang states he informed Plaintiff of abnormal findings and noted her family and personal history. Fact 6.

The parties do not dispute that Dr. Wang recommended total abdominal hysterectomy. UF 7. The Plaintiff signed a consent form for the surgery, which was completed on 7/21/15. The pathology report showed no evidence of malignancy. UF 8, 9, 10.

Plaintiff was told her pathology report was benign. UF 11.

Discussion

Plaintiff did not provide an expert declaration disputing Defendant’s expert’s opinion that Defendant did not breach the standard of care or that there is no evidence that Defendant’s conduct caused Plaintiff’s injuries. Instead, Plaintiff contends that Defendant did not address the issues alleged in the complaint, including that Defendant incorrectly diagnosed Plaintiff with uterine cancer.

Even if Plaintiff’s version of what she believes Dr. Wang told her is true, (Fact 6) she does not proffer any expert declaration disputing Defendant’s contention that there is no evidence that Defendant breached a duty of care. UF 15. This is the ultimate issue that goes to a necessary element of Plaintiff’s negligence claim. Plaintiff does not provide expert testimony that telling Plaintiff she had uterine cancer was a breach of the standard of care given the pathology report findings showing, among other things, “a few small foci suggestive of well differentiated adenocarcinomatous changes …” UF 5.

Contrary to Plaintiff’s argument, Defendant’s motion does address the facts alleged in the complaint. As Plaintiff argues, she alleges, “she underwent an unnecessary total abdominal hysterectomy (hereinafter TAH)” because of Defendant’s negligence. Opposition, 4:5-7.

Plaintiff does not provide expert testimony disputing Scott P. Serden, M.D.’s opinion that it was reasonable for Dr. Wang to recommend a hysterectomy given the pathology findings from the D&C, which showed cancerous endometrial cell changes, and given Plaintiff’s own history and family history. Serden Declaration ¶ 9.

Nor has Plaintiff proffered expert testimony to dispute the lack of evidence on the issue of causation. UF 16. Dr. Serden further opines that no act or omission by Defendant caused or contributed to Plaintiff’s injuries. UF 17.

Plaintiff also argues that Defendant did not address lack of informed consent. Opposition, 2:13. Dr. Serden affirmatively declares that the Plaintiff was given reasonable informed consent, which included telling her that the proposed hysterectomy would render her sterile, and she elected to proceed with the hysterectomy. Serden, Declaration ¶ 11.

Finally, Plaintiff argues that Defendant did not address the issues of agency and vicarious liability. Opposition, 8:1-6. Issues of agency, like vicarious liability, binds the principal or employer for the negligent acts of the agent/employee. Caldwell v. A.R.B. (1986) 176 Cal. App. 3d 1028, 1035. Mannion v. Campbell Soup Co. (1966) 243 Cal.App.2d 317, 320.

Whether Defendant was acting as an agent for another does not negate the undisputed facts that Defendant’s conduct did not breach a duty of care and did not cause Plaintiff’s injuries. UF 15, 16, 17.

Plaintiff argues that the complaint raises the issue of agency. Opposition, 8:2. That paragraph generally alleges that each Defendant was acting as an agent for another as an agent or employee. Motion, Ex. A, 2:19-26. Nothing in this paragraph asserts that Dr. Wang is specifically liable for the acts of another as a principal of an agent or as an employer of another.

Plaintiff does not dispute that the involvement of co-Defendant, Edward Lai, M.D., consisted of relaying the pathology report findings to Dr. Wang. UF 5. Plaintiff does not dispute that she saw Dr. Wang on 7/18/15, and that it was Dr. Wang who informed Plaintiff of the pathology report findings and recommended and performed a total abdominal hysterectomy. UF 6, 7, 9. The undisputed facts do not support a theory of liability against Dr. Wang for another’s alleged negligence.

Plaintiff’s request for a continuance is DENIED.

Plaintiff requests a continuance to permit an expert to review a final transcript of the deposition of Defendant that occurred on 2/27/18. Plaintiff is entitled to a continuance if Plaintiff shows that facts essential to justify opposition exist but cannot be presented. Cal Code Civil Procedure § 437c(h).

Plaintiff must show:

“(1) the facts to be obtained are essential to opposing the motion;

(2) there is reason to believe such facts may exist; and

(3) the reasons why additional time is needed to obtain these facts. [Citations.]” (Wachs v. Curry (1993) 13 Cal. App. 4th 616, 623 [16 Cal. Rptr. 2d 496].) The decision whether to grant such a continuance is within the discretion of the trial court. Frazee v. Seely (2002) 95 Cal.App.4th 627, 633-634.

The court can consider a party’s lack of diligence in determining whether a continuance is warranted. Plaintiff must show a justifiable reason for why the essential facts cannot be presented. Plaintiff must show “justification for why such discovery could not have been completed sooner.” Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257

The court’s file reflects that this motion was originally set to be heard on 11/30/17. Defendant filed a notice of continuance of the hearing on 11/21/17, continuing the hearing to 2/15/18. On 1/18/18, Defendant filed a second notice continuing the hearing to 3/28/18. Plaintiff states that he received a rough deposition transcript of Defendant’s testimony on 3/10/18, and consulted with an expert at that time. Plaintiff requested a continuance to obtain essential evidence. Opp., 16:22-25.

On 3/19/18, Defendant filed a third and final notice continuing the hearing to 6/5/18. Plaintiff has had since 3/10/18 to obtain a finalized deposition transcript and obtain an expert’s declaration, which expert had already been consulted in March of 2018, according to Plaintiff. Opposition, 16:24-28. Plaintiff has not moved to supplement the opposition to provide essential expert testimony in opposition to the motion. Plaintiff’s counsel has not shown why this evidence could not have been completed sooner, given the three continuances provided by Defendant.

Moving party is ordered to give notice.